STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Clarence Peter Kjeseth,
Filed April 8, 2013
Swift County District Court
File No. 76-CR-11-208
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Robin W. Finke, Swift County Attorney, Harry D. Hohman, Assistant County Attorney,
Benson, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Larkin, Judge; and
Felony test refusal is a predicate offense for first-degree driving while
impaired (DWI), Minn. Stat. § 169A.24 (2010).
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
A prior felony conviction of impaired driving or test refusal that is used to
enhance a violation of Minn. Stat. § 169A.20 (2010) must be included in the offender’s
On appeal from his convictions of first-degree DWI for impaired driving, firstdegree DWI for test refusal, and fleeing a police officer, appellant argues that the district
court’s jury instruction on the enhancement element of first-degree DWI was based on an
erroneous view of the law because it allowed his current violations of the DWI statute to
be enhanced by a prior felony conviction of test refusal. In the alternative, appellant
argues that his sentence should be reduced because the district court erred by including
the prior felony conviction that was used for enhancement in his criminal-history score.
Because the first-degree DWI statute, Minn. Stat. § 169A.24, defines as predicate
offenses “a felony under this section,” therefore including both impaired-driving and testrefusal felony offenses, we hold that a prior felony conviction of test refusal can be used
to enhance a subsequent violation of the DWI statute to a first-degree offense. And
because the sentencing guidelines require that prior felonies used for enhancement be
included in an offender’s criminal-history score, we affirm appellant’s sentence.
In 2004, appellant Clarence Peter Kjeseth was charged with first-degree DWI for
impaired driving and first-degree DWI for test refusal. Those incidents were charged as
first-degree offenses based on “four prior qualified impaired driving incidents” from
1999 to 2001. Kjeseth pleaded guilty to first-degree DWI for test refusal, and the other
charge was dismissed.
In 2011, Kjeseth was charged with first-degree DWI for impaired driving in
violation of Minn. Stat. §§ 169A.20, subd. 1(1), .24; first-degree DWI for test refusal in
violation of Minn. Stat. §§ 169A.20, subd. 2, .24; and fleeing a peace officer in violation
of Minn. Stat. § 609.487, subd. 6 (2010). The two DWI violations were charged as firstdegree offenses based on Kjeseth’s 2004 felony DWI.
Kjeseth pleaded not guilty to all three counts and went to trial. After the close of
evidence, the district court proposed a jury instruction on the applicable enhancement
element of first-degree DWI that asked the jury to determine whether Kjeseth had a
previous felony conviction for DWI or refusal to submit to testing. Defense counsel
objected to that instruction, arguing that “the legislature did not mean that refusal to
submit to testing [be] included in [section 169A.24]” and noting that the CRIMJIG on
first-degree DWI enhancement refers only to impaired-driving priors. The district court
recognized that its proposed instruction deviated from the CRIMJIG, but explained that
the CRIMJIG “doesn’t include everything that is within [section 169A.24].” At the close
of trial, the district court instructed the jury that if they found Kjeseth guilty of either the
impaired-driving or test-refusal charge they must answer the additional question on their
verdict form: “Did the defendant have a previous felony conviction for driving while
impaired or refusal to submit to testing.”
The jury found Kjeseth guilty on all counts and answered “yes” to the question of
whether he had a prior felony conviction for impaired driving or test refusal. Before
sentencing, probation calculated Kjeseth’s criminal-history score to be five, a score that
included 1.5 points for his 2004 conviction. The district court sentenced Kjeseth to 66
months in prison, the presumptive sentence for felony DWI by an offender with a
criminal-history score of five. See Minn. Sent. Guidelines Grid 2010. This appeal
Did the district court abuse its discretion by denying Kjeseth’s request to instruct
the jury on the prior felony-enhancement element of first-degree DWI by using the
Did the district court sentence Kjeseth based on an erroneous criminal-history
“The district court has broad discretion in determining jury instructions and we
will not reverse in the absence of abuse of discretion.” Hilligoss v. Cargill, Inc., 649
N.W.2d 142, 147 (Minn. 2002). We review the district court’s jury instructions to
determine whether they “fairly and adequately explain the law.” State v. Vance, 734
N.W.2d 650, 656 (Minn. 2007), overruled on other grounds by State v. Fleck, 810
N.W.2d 303 (Minn. 2012). Jury instructions “must define the crime charged and explain
the elements of the offense to the jury.” Id. An instruction that materially misstates the
law constitutes error. State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). In order to
determine the accuracy of the district court’s instructions, it is necessary that we establish
the elements of the DWI statutes at issue. See State v. Pendleton, 567 N.W.2d 265, 268
(Minn. 1997). Whether the district court has properly construed the elements of a statute
is a question of law, which we review de novo. See State v. Pearson, 633 N.W.2d 81, 83
(Minn. App. 2001).
Minnesota’s DWI statute makes it a crime to drive motor vehicles, motorboats,
snowmobiles, and off-highway motorcycles while impaired or to refuse to submit to a
chemical test of one’s blood, breath, or urine. Minn. Stat. § 169A.20. A person violating
the DWI statute is sentenced under one of four separate penalty statutes: “section
169A.24 (first-degree driving while impaired), 169A.25 (second-degree driving while
impaired), 169A.26 (third-degree driving while impaired), or 169A.27 (fourth-degree
driving while impaired).” Id., subd. 3. First-degree DWI is a felony offense. Id.; Minn.
Stat. § 169A.24, subd. 2. Second-degree and third-degree DWIs are gross misdemeanors
and fourth-degree DWI is a misdemeanor. Minn. Stat. §§ 169A.25, .26, .27 (2010).
A violation of section 169A.20 is a first-degree offense if one of three conditions
is met: “[T]he person: (1) commits the violation within ten years of the first of three or
more qualified prior impaired driving incidents; (2) has previously been convicted of a
felony under this section; or (3) has previously been convicted of a felony under section
609.21 . . . .” Minn. Stat. § 169A.24, subd. 1. The second enhancement provision—
enhancement by prior felony DWI—is at issue in this case.
Kjeseth argues that the district court’s jury instruction on the prior felonyenhancement element was based on an erroneous view of the law. On this element, the
district court asked the jury to decide whether Kjeseth had a previous felony conviction
of DWI or refusal to submit to testing.1 Kjeseth asserts that only a prior felony impaireddriving offense—not a prior test refusal—can support a conviction under the first-degree
DWI statute. Whether the district court’s instruction on the first-degree enhancement
element fairly explains the governing law of the case, therefore, requires us to determine
whether felony test refusal is a predicate offense for first-degree DWI.
We necessarily turn to the language of the first-degree DWI statute, Minn. Stat.
§ 169A.24. Section 169A.24 provides that a violation of the DWI statute results in a
felony conviction if the offender “has previously been convicted of a felony under this
section.” Id., subd. 1(2). We detect no ambiguity in this statutory language or its
meaning. “If a statute is unambiguous, then we must apply the statute’s plain meaning.”
Larson v. State, 790 N.W.2d 700, 703 (Minn. 2010). The statutory language expressly
provides for enhancement of a violation of section 169A.20 by “a felony under this
section”—this is, any prior first-degree DWI. The statute does not limit felony predicates
to only impaired-driving offenses. According to the plain meaning of the first-degree
statute, felony impaired driving and felony test refusal are both first-degree DWI
Having determined that section 169A.24 provides for enhancement by a prior
felony test refusal, we address Kjeseth’s argument that the “statutory structure” of section
169A.20, the DWI statute, creates confusion as to what prior convictions may be used for
first-degree enhancement. Kjeseth asserts that because the DWI statute proscribes four
The CRIMJIG for this enhancement element asks the jury to determine: “Did the
defendant have a previous felony conviction for driving while impaired?” 10A
Minnesota Practice, CRIMJIG 29.22 (Supp. 2012).
types of impaired driving in addition to test refusal, it is ambiguous whether felony test
refusal is a first-degree DWI predicate. We disagree. We discern nothing unclear about
what conduct is prohibited under the DWI statute and to what penalty provisions those
violations are subject.
Kjeseth cites one case to support his theory that only felony DWI based on
impaired driving can enhance a subsequent offense. See State v. Smoot, 737 N.W.2d 849
(Minn. App. 2007), review denied (Minn. Nov. 21, 2007). But Smoot is not relevant to
our inquiry because the issue in that case was whether felony DWI could serve as a
predicate offense for felony murder. Id. at 851. Not only is Smoot off-point, it does
nothing to alter the enhancement elements of first-degree DWI.
Because it is undisputed that Kjeseth was convicted in 2004 of a felony under
section 169A.24, his current conviction was properly enhanced. And because the firstdegree DWI statute treats all prior convictions under section 169A.24 as predicate
offenses—and makes no qualification whatsoever for felony test-refusal crimes—the
district court’s instruction on the first-degree enhancement element was in accordance
with the law. As a result, the district court did not abuse its discretion by refusing to
follow the CRIMJIG on the prior felony-enhancement element of first-degree DWI.
Consequent to our ruling, we reiterate the district court’s sound observation that
the CRIMJIG on the prior felony-enhancement element of first-degree DWI does not
encompass the breadth of section 169A.24. Because it fails to account for both types of
conduct—impaired driving and test refusal—that give rise to a prior felony under section
169A.24, the CRIMJIG is incomplete.
Kjeseth alternatively argues that his sentence is based on an incorrect criminalhistory score because it includes points for his 2004 DWI conviction. He contends that
this conviction cannot be used to both enhance his current offense and to increase his
criminal-history score. We review the district court’s determination of a defendant’s
criminal-history score for abuse of discretion. State v. Stillday, 646 N.W.2d 557, 561
(Minn. App. 2002), review denied (Minn. Aug. 20, 2002). But construction of the
sentencing guidelines is a question of law, which we review de novo. State v. Maurstad,
733 N.W.2d 141, 148 (Minn. 2007).
Under the Minnesota Sentencing Guidelines, prior misdemeanor or gross
misdemeanor convictions that enhance an offense to a felony may not be used to
calculate an offender’s criminal-history score, except to determine custody status. Minn.
Sent. Guidelines II.B.6 (2010). But “[p]rior felony offenses used for enhancement shall
always be used in calculating the offender’s criminal history score.” Id. The guidelines
If the current offense is a felony DWI offense and the
offender has a prior felony DWI offense, the prior felony
DWI shall be used in computing the criminal history score,
but the prior misdemeanor and gross misdemeanor offenses
used to enhance the prior felony DWI cannot be used in the
offender’s criminal history.
Id. (emphasis added).
It is without dispute that the guidelines mandate the inclusion of Kjeseth’s 2004
felony DWI in his criminal-history score even though it was used to enhance his current
offense. Kjeseth argues, however, that the guidelines in this respect conflict with the
holding of State v. Zeimet, 696 N.W.2d 791 (Minn. 2005). But in Zeimet, the supreme
court addressed enhancement under subdivision 1(1) of the first-degree DWI statute—the
provision governing enhancement based on qualified priors—and limited the extent to
which qualified priors could be included in a criminal-history score if used for
enhancement. 696 N.W.2d at 794, 797. Unlike this case, none of the predicate offenses
at issue in Zeimet were felony offenses. Id. at 793 n.1. Because Kjeseth’s current offense
was enhanced by a prior felony pursuant to subdivision 1(2), Zeimet is inapplicable.
In sum, the inclusion of Kjeseth’s 2004 felony DWI in his criminal-history score
was a proper application of the guidelines and was, therefore, well within the proper
exercise of the district court’s discretion.
Because the district court’s jury instruction on the prior felony-enhancement
element of first-degree DWI properly included both impaired-driving and test-refusal
predicates, the district court did not abuse its discretion by denying Kjeseth’s request to
follow the CRIMJIG.
Furthermore, because the sentencing guidelines require the
inclusion of prior felonies in an offender’s criminal-history score, irrespective of whether
those priors enhance a current offense, the district court did not abuse its discretion in
calculating Kjeseth’s criminal-history score.
reducing Kjeseth’s sentence.
Accordingly, we discern no basis for